I provide commentary on political economy, police and prosecutorial abuse, and whatever else might come to mind.
Let justice roll down like waters,
and righteousness like an ever-flowing stream. Amos 5:24 (ESV)

Wednesday, March 30, 2011

How far should prosecutorial immunity go? Apprently, SCOTUS believes into infinity. Or, Liability for Thee, but not for Me!

Because this blog deals with prosecutorial misconduct, the issue of immunity is front-and-center. Years ago, the U.S. Supreme Court (SCOTUS) ruled that judges and prosecutors have absolute immunity from civil action, which means that for the most part, they are not liable for pursuing wrongful convictions.

Because the various state bars are very, very reluctant to discipline prosecutors, the typical prosecutor knows he or she pretty much is invulnerable. Yes, they can be criminally prosecuted, but no prosecutor in the history of this country ever has been convicted of criminal malfeasance for conduct in the "line of duty," even though it has been obvious that at least in some cases, the criminal behavior was deliberate and cold. Thus, armed with that knowledge, a prosecutor knows that he or she does not operate with the same set of personal restrictions that hold back the worst behavior in other occupations.

Obviously, the court opened a huge can of worms, as it basically said that as long as a prosecutor can claim he or she was doing something within the scope of prosecutorial duties, then that person cannot be sued, even if he or she deliberately withheld evidence. Furthermore, the SCOTUS declared that

alternative sanctions to civil lawsuits against prosecutors were available to deter a prosecutor’s malicious and dishonest behavior. Indeed, the availability of bringing criminal charges against a prosecutor, as well as the availability of professional discipline by bar associations, would “not leave the public powerless.” “These checks,” said the Court, “undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.”

People who saw that decision as overreaching had some hope in a case Pottawattamie County v. McGhee in which prosecutors clearly framed innocent people for a murder. In fact, prosecutors claimed in their defense the following outrageous statement: there is no constitutional "right not to be framed.” That's right; prosecutors were claiming that even if they framed someone, that was OK, as the Constitution does not forbid it.

Unfortunately, the case was settled before the Supremes could rule on it. However, they gave what I hold to be a partial answer in Connick v. Thompson, declaring that the DA's office of New Orleans Parish could not be held liable for failure of its prosecutors to turn over exculpatory evidence. In other words, the SCOTUS ruled that violation of the Brady Rule inferred no particular responsibility upon the people who were responsible for violating it.

Keep in mind that most readers of this post are not prosecutors, nor are public officials. That means that the laws regarding liability are imposed differently upon them than upon those who are sworn to uphold the law and who hold special powers in bringing people to trial. The people with greater responsibility have less liability than everyone else.

If that seems to be an outrage, that is because it IS an outrage. What SCOTUS has done once again is to declare that prosecutors are a special class of people who, de facto, do not have to obey the law. And, guess what? There are lots of prosecutors who take advantage of that privilege and, surprise, surprise, violate the law with impunity.

The Rule of Law is supposed to mean just that: rule of law. A nation that has Rule of People Who Do Whatever They Want cannot survive as a decent society.

So, using prosecutorial logic, the constitution doesn't explicity prohibit lawbreaking either. Therefore, prosecutors can't really put people in prison for laws which aren't violated under Constitutional law. Right? If that's right, why are we here? Their logic makes as much sense as a teenager doing something because everyone else does. That dog just don't hunt.There are good prosecutors who follow the legal canons. But those people are just as bad as their evil brethern when they don't stop the travesties by refusing to allow them. The Supreme Court also handed down another decision either yesterday or today basically holding up the ones you cited, Bill. That one was in Texas, where a man was on death row because the prosecutor didn't pass on exculpatory evidence. Harry Connick Sr was the DA in that case but I can't remember the incarcerated man's name. Ruth Gingberg wrote the dissenting opinion. Very strong but she stopped short of actually saying prosecutors should be held civilly and criminally responsible for their actions.

Actually, that was the case in New Orleans Parish, K.C. I would agree with the dissenters on this one. The SCOTUS conservatives tend to vote with the government whenever there is a case involving misconduct by police and prosecutors.

The court liberals tend to believe that the state should have absolute power, just as long as the person is just an ordinary bureaucrat. So, both groups actually have us in a vice grip!

And their political backsides are protected by their friends. We've tried organizing to bring these people down by voting them out but have run into brick walls all over the place. Not to say we're quitting. Buzz Franklin's term ends next year. Originally, I'd heard he wanted to be a judge. That probably won't happen, which is good since Len Gregor was his groomed replacement. But we also need to get rid of Buzz. Can't have a DA who thinks the state has a right to a fair trial.

In what is highly perverted sense of justice these judges have come up is so stupid that you cannot sue a person for perjuring their testimony because they are immune for having testified. Congress should pass a law that forbids the granting of immunity in civil lawsuits as that would reduce the corruption level of government officials.

Nullifer and Jerri Lynn, you're both correct. We are NOT morally or legally bound to obey an unlawful government, which "ours" has been since long before any of us came to life. The rolling of some heads --literally-- is long past due.

You say "no prosecutor has ever been convicted of criminal malfeasance" in the line of duty. That's incorrect; Mike Nifong was. The punishment was light ... but he was punished. We can say that a prosecutor was charged AND convicted of misconduct.

Mike Nifong is not the only one that need's to be Punished, There is Buzz, Len the man, Arnt, and many more, Judges and all, They are all scum, I say we need to go back to Like the Hatfield's and McCoy's, Just sayin.

One of the reasons prosecutors have immunity from civil actions is because jail inmates with nothing to do but time will find their way to the law library in short order, and when they aren't laying the groundwork for an appeal, a frequent result is a lawsuit challenging the conditions of their incarceration.

A total of 53,312 inmate suits were filed nationwide in federal courts in 1994.

Studies show that only 2 percent of prisoner lawsuits reach settlement and 1 percent go to trial.

Sure open up that Pandora's box and no case will every make it to trial, all the prosecutors will be defending themselves in civil court.

Mike Nifong was convicted of criminal contempt for lying to a judge. It was a bench trial and he received one day in jail.

Nifong never was charged with a real crime and he certainly did not have to face what the three young men and their families faced when Nifong lied to get the indictments. I'm sorry, but this is not a conviction that counts and a day in jail is barely an inconvenience.

I'd heard he wanted to be a judge. He considered the seat House took but decided not to run.

Can't have a DA who thinks the state has a right to a fair trial. Both sides have a right to a fair trial. The prosecution seeks the truth; proving that the evidence is sufficiently credible to prove every element of the charge beyond a reasonable doubt. Defense attorneys do not want that system to even suggest to jurors that the trial or their job has anything to do with seeking, finding or determining the truth.

Sorry, pal. The state is NOT on trial. The state is providing the apparatus for a trial, and it is supposed to be fair.

Gee, Buzz said the state did not "get a fair trial" in the Tonya Craft case. The state was not being tried; I can tell you that Tonya did not receive a fair trial, not with Gregor, Arnt and outhouse having illegal strategy sessions on how to rig a conviction.

And please don't tell me that prosecutors "seek the truth." If you are telling me that subornation of perjury is "seeking the truth," then you must be an employee of or associated with the LMJC.

Furthermore, states and their justice systems don't have "rights." They have powers. Individuals being tried have "rights."

So, all I can say is that you truly are an idiot, as anyone who would defend the conduct of Arnt and Gregor either is dishonest or incredibly stupid.

By the way, it is "You're wrong," not "your wrong." I guess that when you were in school, you learned neither spelling nor the Constitution of the United States.

Thank you for writing this. Long story short, I am trapped in a hell right now because a certifiably insane woman, who stole a car, impersonated a police officer, was herself documented committing A&B, calling a policeman a rapist (the two had never met before) falsely-accusing both her parents, has falsely-accused me of assault. Problem is, it did not happen, there was no witness nor evidence for that reason. She logged a "refusal" when the local police insisted she should go to the hospital when she thought to claim her finger as "injured" (assault here in this charge was defined as NO physical contact having happened) and she refused to go the hospital to have the finger, actually arthritic and not having ever been injured, looked at. The local DA refused to acknowledge that 23 days before accusing me falsely, she committed a home invasion. Some of the very same police personnel who attended to my arrest took her out of the home invastion, wherein she freaked out burly construction workers. After the false-charge against me, and this seems significant, the same court refused to let her have a restraining order against me, I Was able to get one against her, and another court, in face of the charge against me, has provided me with full custody of our daughter, 13. Also, she gouhlishly brought our daughter to my arraignment. I did not do that when she came back from a 2-week psychiatric evaluation to face an A&B she Did commit against her boyfriend. Meanwhile, the DA refuses to acknowledge that my accuser has done all these things, and is being arraigned next month herself for the stolen car and mayhem she committed in January. The DA, blindly, and with malice against me, still expects to put me through trial. Oh, and my accuser, in another psychotic state, reported her own mother as molesting my daughter over the weekend. My former mother-in-law, while preparing for church, had squad cars pulling up to her house yesterday because this woman, insane, gets rights that the local DA takes from me.

Thank you for this blog - I expect I will include a paragraph or two from it in the book I am writing - Liberty & Mental Health - You Can't Have One Without the Other. (The Honorable Mention I received back in 1982 on how Mental Health Courts could save communities money while providing better treatment came out of my experiences in the L.A. County jail.)

About Me

I teach economics at Frostburg State University in Frostburg, Maryland. We are located on the Allegheny Plateau, and we have cool summers and tough winters.
I am the single father of five children, four of them adopted from overseas and I have two grandchildren. My family and I are members of Faith Presbyterian Church (PCA).